November 2017 HL Quarterly Update

15 Nov November 2017 HL Quarterly Update

Growing Our Ranks
Hanba & Lazar added to its team in September by hiring a new associate, Aaron Majorana. Aaron has experience in employment law, and his prior firm specialized in claims involving the Elliott-Larsen Civil Rights Act, Family and Medical Leave Act, and Whistleblower’s Protection Act. Aaron has also worked on cases involving wrongful death, personal injury, no-fault, probate, and family law. Outside of work, Aaron was recently married and spends time running, cycling, and volunteering at his local church.

You be the Judge
It’s time to go (back) to law school. Take a look at the below hypothetical question, wrack your brain for the best answer, and send us your response at jrea@hanbalazar.com. After our experienced judges evaluate the responses, the winner will receive a special something, courtesy of Hanba & Lazar.

Lawyer leaves her home in the early morning, as she is to cover a hearing for the benefit of her client in a Detroit courtroom. Although the commute is a mere twenty-eight miles, she leaves earlier than necessary in case she encounters traffic snafoos, given Detroit’s economic resurgence.

Traffic proves not to be problematic and she arrives at the public parking lot adjacent to the courthouse with forty-five minutes to spare.

She exits her vehicle taking both file and purse, walks completely across the public parking lot, whereupon she travels easterly on the public sidewalk. Upon arriving at the crosswalk intersection (which is governed by an automated traffic control system) she awaits the appropriate signal allowing pedestrians to cross in the paint-striped zone marked for pedestrian use.

When the traffic control signal advises that she is to cross, she takes approximately four steps into the public street when she, most unfortunately, is struck by a motor vehicle which has in fact disobeyed the traffic signal.

The impact causes severe fractures to the ankle, tibia, and fibula of her left leg. She is taken by ambulance to the nearest hospital, whereupon triage is performed. She never enters the courthouse or the courtroom due to the motor vehicle accident.

Is this a compensable, work-related injury under Michigan law?

Return of the 20 Factor Test
Hanba & Lazar recently scored a victory in a case involving over $350,000 in liability. The case involved Christopher Parshall, who was working as a mechanic, and suffered several fractures when his legs were run over by a truck. Benefits were paid by Plaintiff Acuity Insurance Company under a no-fault auto policy. Plaintiff later sought recoupment of benefits paid under the no-fault policy from Defendant. The parties agreed that the sole issue was whether or not Plaintiff was an employee at the time he sustained his injury.

Over the course of a multi-day trial, extensive testimony was given and a great deal of documentary evidence was entered into the record. Among the facts Hanba & Lazar presented on behalf of Defendant were that Mr. Parshall never applied for a job with Defendant, was never trained by Defendant, and was only paid $400 per week, which is far below the normal wage for mechanics working with Defendant. Mr. Parshall was not given a W-2 from Defendant, and when Mr. Parshall applied for auto no-fault benefits, he indicated that he believed himself to be an independent contractor. Magistrate Lisa Woons authored an 89-page opinion, and she applied the 20 Factor Test found within the Worker’s Disability Compensation Act at MCL § 418.161(1)(n). Although the Magistrate’s opinion doesn’t necessarily indicate which of the factors weighed most heavily on her decision, she did hold that Mr. Parshall was an independent contractor at the time of his injury. Therefore, Plaintiff was not entitled to reimbursement from Defendant. Given the large figures involved in this matter, we do expect Plaintiff to appeal the Magistrate’s decision.

Bringing Liability Home
Early in October, the country was rocked by news of a mass shooting at a concert in Las Vegas. Many of the concert attendees emerged as heroes, including those who helped injured people to safety. Among them were the estimated 200 off-duty California police officers who rushed into action when the shooting began. In the subsequent weeks, many of those police officers have returned home and sought worker’s compensation benefits and even long-term medical care based on their injuries and the trauma they endured. However, these men and women are now finding themselves in the middle of a legal battle over what type of duty, if any, a city has to pay their off-duty police officers if they are involved in an out-of-state emergency. Some of the California police officers have already had their worker’s compensation claims denied. California law appears to be unclear on the issue, although one California state lawmaker has already proposed legislation requiring the state to pay benefits in these types of situations.

Here in Michigan, there is no “Good Samaritan” law requiring that individuals assist others in need. Further, there is no statutory provision in the Worker’s Compensation Act that directly addresses the issue. In fact, Hanba & Lazar is currently involved in litigation that involves a very similar scenario. As part of our defense, we have relied in part on a Michigan Supreme Court decision that indicates “It may be stated generally that the phrase ‘out of and in the course of employment’ embraces only accidents which happen to a servant while he is engaged in the discharge of some function or duty which is authorized to undertake, and which is calculated to further, directly or indirectly, the master’s business.” Sichterman v Kent Storage Co., 217 Mich. 364 (1922). If this reasoning is applied, it appears that individuals who take it upon themselves to act while off-duty, or in another state, will have a difficult time receiving benefits. While we cannot say for certain how this matter would play out in Michigan, we will have the chance to see how it plays out in California over the coming months.

Digging Too Deep
When Plaintiff takes the stand in the course of a trial, their credibility can make or break their case. Hanba & Lazar was recently reminded of that fact, when Plaintiff Derek Reynolds claimed he suffered an injury to the left side of his upper back while shoveling asphalt out of a paver. Eventually, Plaintiff was diagnosed with a fracture of the spinous process at C7 and T11. Beyond teaching lessons about credibility, this case was also a good example of how even the scariest-sounding terms, such as “spinal fracture”, may not be as ominous as they appear at first blush. The spinous process is simply a piece of bone that projects off the posterior of each vertebra, and although it serves as the attachment point for muscles and ligaments, it does not play any role in actually protecting the spinal cord. Therefore, any fracture to this portion of the vertebrae does not necessarily endanger any nerve structures.

After protracted settlement negotiations, Plaintiff would not settle his case for a reasonable amount, and the matter proceeded to trial. Although there were of course legal and medical arguments made at the time of trial, presiding Magistrate Slater’s opinion included blistering statements regarding the Plaintiff’s credibility, which was in fact the focus of his opinion. Based on what the Magistrate perceived as a lack of credible testimony from Plaintiff, he was awarded no additional wage loss benefits (he was paid for less than two weeks after the alleged injury), and Plaintiff’s medical benefits were cut off as of the date of Defendant’s Independent Medical Exam. These amounts pale in comparison to the Plaintiff’s settlement demand and even the facilitation award.

Please leave us comments/questions. If there is a topic that you would like to see discussed in this Quarterly, please let us know. Comments and questions can be directed to Jonathan Rea at jrea@hanbalazar.com.

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